Tuesday, 19 February 2013

And The Papers Are At It, Too: Fisking the Ross Clark Express Piece

I didn't intend my original comments on Theresa May's legal illiteracy to become a mini-series, but needs must and the problem extends deeper than simply the Home Secretary's lack of understanding. The Express has published an op-ed by Ross Clark that reeks of inaccuracy. This is really an endemic problem, spreading further than one article - as the Leveson report pointed out, most newspapers lack dedicated legal correspondents and a great deal of writers and columnists lack legal experience. Sure enough, Ross Clark's profile is notable for the fact that he doesn't appear to be a legal correspondent per se or have any notable experience writing legal commentary - he's a right-wing columnist who publishes propaganda pieces. Now, I'm not of such a technocratic mindset that I think only lawyers should be able to comment on legal matters, but it is important that newspaper editors require of their writers a level of comprehension and understanding that extends further than merely reiterating Tory propaganda. From Mr. Clark's article, it would appear that his only reading of the case is having read the Home Secretary's comments.

Clark begins his piece with sweeping, almost apocalyptic invocations of the principles of democracy versus the realities of despotism, he states that parliamentary sovereignty and democratic consent 'ensures our freedom from despotism: a political system in which power rests in the hands of elected representatives who live in constant fear of losing their jobs.' Fair enough, but the cases don't affect the doctrine of parliamentary sovereignty - they are an acknowledgment that guidelines to the judiciary on the implementation of human rights law passed by The Commons, rather than the whole of Parliament, don't occupy the same legal status as legislation. To have decided otherwise would be the really radical decision. Then Ross Clark goes on to say:

'I am rather less convinced by human rights lawyers who try to claim that it is in their hands that our freedom rests.'

This is just blatant populism, and relies on the hope that you hate lawyers and people in suits more than you hate elected politicians. Suffice to say, nobody is claiming that human rights lawyers are the guardians to the keys of freedom, but that the judiciary is under an obligation to apply the law, and guidance papers are not of the same legal standing as Acts of Parliament.

On the contrary, when I see lawyers making up the law through a perverse interpretation of a principle in the European Convention on Human Rights I begin to feel a little of the same sense of powerlessness which ruled the lives of people who lived under Eastern European autocracies.

Here's where the article delves into mindless stupidity. Lawyers do not 'make up the law', but rather the judiciary is applying laws handed down by parliament itself in deportation cases, to which Article 8 claims may apply in exceptional circumstances. The comparison with Communist states is ludicrous, since the powerlessness of communist autocracies came precisely from a lack of legal oversight and human rights protection for individuals. It was a lack of lawyers, rather than an abundance of them, which is in part reasponsible for totalitarian excess.

The guidance needed issuing because the law had become a farce. Since the Human Rights Act came into effect more than 100 foreign criminals have evaded being returned to their homeland on the grounds that it would harm their family life.

Meaning that roughly 10 cases per year are decided in favour of a defendant alleging that his/her Article 8 rights would be violated with little to no public interest being served by the deportation. There are no comparisons for us to deduce whether or not this is the norm. Placing the claim within its relevant context would require comparing it not just with the amount of times Article 8 claims fail, but in deportation cases involving criminals which don't invoke Article 8 at all. Yet Ross Clark goes to no effort to contextualise his claims, and hopes you won't notice the shoddy reporting. Unlike Theresa May, however, Ross Clark does provide some (dubious) examples:

They include Aso Mohammed Ibrahim, a failed asylumseeker who mowed down 12-year-old Amy Houston in Blackburn in 2003. In spite of the fact that he had no right to be in the country anyway – and that he had other convictions for harrassment and possessing drugs – he was allowed to stay in Britain by virtue of having fathered two children after serving his jail sentence.

This is at least a real judgment, but the lack of any links on the piece to which readers can fact-check the piece for themselves should give some indication of the general level of rigor and intellectual discipline of the summary. If readers are interested, they can look here for the facts and judgment, as well as a summary of the immigration judge's assessment. Contrary to what the tone of Clark's summary of the judgment implies, merely having two children does not automatically establish Article 8 rights which override deportation proceedings. A quick reading of the actual judgment itself finds that the immigration judge was not just considering the Article 8 rights of the Aso Mohammed Ibrahim, but more crucially, his children:

I am satisfied that the relationship is of such significance that can genuinely be characterised as family life and that the best interests of the children is such that the Appellant should not be removed from the UK. Were it not for the children my view with regard to the matter may be [sic] different. However I find that the disruption and interference in the family lives of the children and therefore of the Appellant and [ ] would be of such significance that it is not proportionally justified to remove the Appellant from the UK.

The Upper Tribunal further noted that had Aso Mohammed Ibrahim been subject to deportation proceedings at the time of the offense, his case would have likely been unsuccessful. In the intervening seven years since he had committed the offense, however, he had fathered two children, whose best interests, said the immigration judge, would not be served by having their father sent back to Iraq. Had the deportation proceedings been started at the time of the offense, they would have likely succeeded. So really, the anger is to be directed at the government for taking so long to issue deportation proceedings, rather than at the Human Rights Act and the judiciary for allowing Ibrahim's claim to succeed. The second example Ross Clark uses is of Mr. Rohan Winfield, but since the case is unreported, I strongly doubt that Clark has actually read it. I would hope to see legal commentators in the popular press refrain from commenting on things before they've actually, you know, read them. The only reference I can find to the case is in this Telegraph piece, which goes into no detail whatsoever with regards to the judge's reasoning or the merits of the case. Therefore Ross Clark's commentary on it is, quite simply, untrustworthy.

We now have an immigration policy which turns away entrepreneurs and PhD students yet puts a large “welcome” mat out to overseas criminals.

This is just a false dichotomy. If we're talking about the immigration policy approach to PhD students and entrepreneurs, that's another matter, but Article 8 rights of the families of criminals don't have any bearing at all on whether or not skilled workers are allowed into the country. It's simply lazy, sloppy thinking to think of them as somehow legally connected, and this is in no way a relevant or insightful criticism of UK immigration policy. Article 8 is not a 'welcome mat' and is not successful in all cases - criminals are still deported for committing crimes, but if the criminal's family would have their own rights violated (being, as they are, you know, innocent people), then it is a relevant consideration to ask what the actual objectives of deportation are, and do they outweigh the distress to the children of never being able to see their father again?

All article 8 of the Human Rights Act has achieved is to provoke a baby boom among criminals who know that if they can manage to father a child before deportation proceedings are completed they have a good chance of being allowed to stay in Britain.

Extraordinary claims require extraordinary evidence. Yet it seems that amongst the editors of The Express, all that will suffice is for a writer to pluck bogus claims from his arse and hope nobody notices he's making shit up. This is just a completely ludicrous, unsubstantiated, made-up piece of propagandistic drivel. If only ten cases regarding Article 8 are decided every year in favour of the defendant, not all of them will involve children. So less than 10 cases each year hardly constitutes a 'boom' amongst criminals. There is no evidence for this claim whatsoever and it shouldn't have gotten past an editor, if the editor was interested in facts rather than political spin.

Yet according to Lord Woolf the most outrageous aspect is not that violent criminals are allowed to escape deportation but that Theresa May should dare to challenge the judges who have made the rulings.

Yesterday he claimed that her remarks “undermined the rule of law” on the grounds that a minister should not dare question the rulings of judges.

Translation: "I have not read the relevant cases, and I've only read summaries of the controversy, so I presume Lord Woolf was angry that ministers criticised judges." I'm guessing that Ross Clark used the "undermined the rule of law" quote because that's the only part of Lord Woolf's statement that isn't behind a Times paywall. Here's what he actually said:

'It behoves ministers to be circumspect in their remarks, particularly the Home Secretary, who has responsibilities for upholding the rule of law. What is said in debate in Parliament does not change the law.

If the Home Secretary is not pleased about a decision and thinks that it is wrong or not in accordance with the law, then she has the right to go to the Court of Appeal.

If the law needs changing, she can go to Parliament...'

In other words, Lord Woolf was expressing concern at the Home Secretary's lack of understanding of constitutional process, in keeping with the criticisms expressed on this blog and elsewhere, than the fact that she dared to criticise judges.

Even if you do believe that the right of convicted criminals to choose to live in Britain should take precedence over the rights of the rest of us – which I suspect is rather a minority viewpoint – you surely must recognise the primacy of Parliament, which last July voted to approve the new guidelines.

Except that nobody has disagreed with parliamentary sovereignty, they are instead taking issue with the claim that a debate and subsequent vote in The Commons should override the statutory law, as well as the international and domestic case law.

Yet one judge quoted by May justified his ruling to allow a foreign criminal to stay in Britain with the words that the debate in Parliament amounted only to “weak scrutiny”.

It's always a shame when columnists take two words from a judgment as evidence to back up their claims - the phrase 'weak scrutiny' was used to contrast the weight accorded to guidelines voted for by the House of Commons in comparison to primary legislation and case-law.

A democracy functions on the principle that elected politicians make the law and the courts enforce it. When judges start trying to make the law as well as enforce it we are sliding towards judicial dictatorship.

Reading this, you might be forgiven for forgetting that we are talking about an Act of Parliament, here! Article 8 was passed by Parliament in 1998 one year after a landslide victory for New Labour in 1997. It applies in cases where people have a familial interest and in which the rights not just of the criminal but of his/her family are potentially violated. If judges made a distinction between the families which are worth consideration, such as those of criminals being deemed worthy of no right to legal redress absent even an Act of Parliament saying so, then that is the legal regime which embodies more the characteristics of a judicial dictatorship.

The row over foreign criminals is part of a wider trend towards laws being made in the courts rather than in Parliament.

Increasingly administrative decisions are being fought out in judicial reviews where a court decides whether ministers have followed correct, lawful procedures.

Ministers, of course, are as bound to obey the law as anyone else but the constant barrage of challenges brought by well-funded vested interests is beginning to paralyse the business of government.

First we have false dichotomies and now false equivalence! This is not the time or the place to get into an in-depth discussion about judicial review, others have done that far better than I could. It's very difficult to get at what Ross Clark is arguing - is he saying that there are particular judicial review cases which were decided incorrectly, if so, which ones? Either you think that the government has a duty to follow the law and have this enforced through challenges from its citizens, or you think this whole judicial review thing is a load of nonsense and should be gotten rid of. No amount of "I'm not saying, I'm just saying" caveats will cover up columnists thinking sloppily on these matters. Although, 'the business of government' is a telling phrase, isn't it?

Few people would disagree with the original articles of the European Convention on Human Rights, which the Human Rights Act incorporated into British law, nor question that they be used to prosecute fallen dictators and war criminals.

But the convention has grown and now contains protocols on discrimination and the like so vaguely written that they are open to wide interpretation.

They are meant to be vaguely-written, to accord a wide margin of appreciation to states in their implementation, so that the law isn't made at the international level, but reflects a process of interpretation, debate, disagreement and consensus.

I've run out of steam, but this piece wasn't just about attacking an idiotic column by an obvious propagandist in a right-wing newspaper. This demonstrates the general lack of regard much of the op-ed based tabloid media accords to legal matters and in particular issues surrounding human rights. For whatever reason, the right-wing have decided that they don't much like the human rights act, and in the absence of genuinely absurd cases (which would warrant outrage) have proceeded to make things up and publish ill-informed garbage like Ross Clark's piece. If claims are to be made by legal reporters, they should be substantiated and fact-checked, not just rushed through because they serve a political purpose.